Thursday, December 31, 2009

Assembly Speaker Joseph J. Roberts Jr. (D., Camden) released a statement [available here] this afternoon saying the Assembly would not vote on [marriage equality legislation, available here] unless it first passed the Senate. But the measure recently stalled in the Senate after supporters could not secure the 21 votes needed for passage.

(Thanks to Rick Xiao, California attorney and site collaborator, for providing the filing.)

In a December 21st letter, a "Media Coalition" of national news networks asked Judge Walker to allow broadcasting and webcasting of the Perry trial. The Prop. 8 proponents expressed their objections in two letters; the Perry plaintiffs quickly responded to their objections. (See my December 29th post on the letters by both parties.) Yesterday Judge Walker said that he was considering asking 9th Circuit Chief Judge Alex Kozinski to approve recording or webcasting of a January 6th hearing on a discovery dispute. Once reviewed, a recording would help him decide whether to allow recording or webcasting of trial proceedings, and would "inform the parties' positions" on the issue.

An anonymous reader of this site has alerted me to today's notice of the Northern District of California (N.D.Cal.). The Court invites public comment on a proposal to allow television of a judicial proceeding under "a pilot or other project authorized by the Judicial Council of the Ninth Circuit." The latest authorized "pilot project," of course, involves experimental, "limited use of cameras" by district courts in the 9th Circuit. The astute reader has also identified the N.D.Cal. Court's request to engage "a video production company to record a series of audio/video recordings ('movies') of a multi-day event that begins on January 11, 2010 ... estimated to last for two to three weeks." The reader concludes that "Judge Walker is determined to televise/webcast the Perry trial, no matter what."

These are the circumstances in which the Media Coalition has just filed a brief on why Judge Walker should allow television coverage of the Perry trial.

Walker’s New Year’s Eve surprise is a critical step in his evident ongoing effort to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-styleshow trial of Proposition 8’s sponsors. Specifically, Walker is rushing to override longstanding prohibitions on televised coverage of federal trials so that he can authorize televised coverage of the Proposition 8 trial. Televised coverage would generate much greater publicity for ringmaster Walker’s circus. And, whether Walker desires the effect or is somehow blind to it, televised coverage would surely also heighten the prospect that witnesses and attorneys supporting Proposition 8 would face harassment, intimidation, and abuse.

As Ted Johnson at Variety’s WilshireandWashington.com reported earlier – US District Court Judge Vaughn Walker received so many letters for and against broadcasting the Jan. 11 federal challenge to Prop 8 that he decided to hold a hearing on the issue. That hearing is set for Wednesday in San Francisco.

(Thanks to Rick Xiao, California attorney and site collaborator, for providing the filing.)

On December 15th, attorneys affiliated with the Alliance Defense Fund filed Imperial County's motion to intervene in Perry v. Schwarzenneger. The County's Board of Supervisors hope to join the Prop. 8 proponents, just as San Francisco County has been allowed to join plaintiffs. Imperial County, of course, claims rather different interests in the case. Its primary interest rests on what plaintiffs consider a "conjecture." If the Prop. 8 proponents lose, and "hostile" government defendants don't appeal a final judgment invalidating Prop. 8, could proponents appeal the judgment to the 9th Circuit? According to Imperial County's motion, San Francisco County has argued that proponents would lack "Art. III standing." (See also the "citizens suits" annotation beginning at page 688 of this publication.) Under this scenario, Imperial County, if allowed to intervene, would have Art. III standing for the purpose of an appeal. Plaintiffs make quick work of this argument:

[A]ny jurisdictional deficiency among the Proponents has no bearing on whether Imperial County itself has a significant protectable interest in this litigation. Moreover, any prediction as to whether Defendants would appeal from a decision invalidating Prop. 8 is entirely speculative, and the Ninth Circuit has explicitly rejected speculation as the basis for granting intervention.

On December 11th, a 9th Circuit panel ruled that Prop. 8 proponents could withhold their internal campaign communications from discovery in the Perry case. A 9th Circuit judge called for a vote on whether the ruling should be reviewed en banc. Yesterday the Court denied the call for an en banc rehearing. Bob Egelko of the SF Chronicle reports on this development here.

Tuesday, December 29, 2009

(Thanks to California attorney Rick Xiao for providing me a copy of the letter.)

On December 17th, the Ninth Circuit issued a press release announcing a pilot program on the experimental use of cameras in non-jury, civil proceedings. Less than a week later, a Media Coalition of national news networks sent a letter to Judge Walker, informing him of the Coalition's interest in "gavel-to-gavel" television coverage of the trial in Perry v. Schwarzenneger. The Coalition also expressed willingness to submit a formal brief, if Judge Walker thought briefing warranted.

In this letter, Charles Cooper, counsel for the Prop. 8 proponents, sets out their objections to televising the trial. One objection concerns a local court rule and a federal judiciary policy banning use of cameras in court proceedings. Cooper explains why the Judicial Conference - the federal judiciary's policymaking body - adopted the policy against televising trials, and applies the rationale to the trial in Perry. Cooper claims that his clients risk losing an opportunity for a fair trial if it's televised:

Most importantly, given the highly contentious and politicized nature of Proposition 8 and the issue of same-sex marriage in general, the possibility of compromised safety, witness intimidation, and/or harassment of trial participants is very real.

Cooper also claims that a televised trial would "impinge on the privacy interests" of witnesses, particularly those "only tangentially related to the case." As a result of these risks, some witnesses may be too afraid to testify.

Journalist Karen Ocamb reports on a reply to Cooper's letter by an attorney for the Perry plaintiffs, Theodore J. Boutrous, Jr..

Boutrous states:

Proponents’ concerns about “the possibility of compromised safety, witness intimidation, and/or harassment of trial participants” (Doc # 324 at 6) are utterly unsubstantiated and groundless speculation. Indeed, Proponents willingly thrust themselves into the public eye by sponsoring Prop. 8 and orchestrating an expensive, sophisticated, and highly public multimedia campaign to amend the California Constitution. They certainly did not exhibit a similar fear of public attention when attempting to garner votes for Prop. 8 from millions of California voters, when touting their successful campaign strategy in post-election magazine articles and public appearances (see Doc # 191-2; http://www.youtube.com/watch?v=ngbAPVVPD5k), or when voluntarily intervening in this case. In any event, many aspects of the trial—including opening and closing arguments and testimony by the parties’ experts (who were designated after the Court first raised the possibility of televising the proceedings)—will not even remotely implicate Proponents’ purported witness-related concerns. To the extent that this Court determines that witness issues or other factors militate against permitting camera coverage of particular portions of the trial, the Court possesses broad discretion to decide, on a case-by-case basis, whether certain portions of the proceedings should not be televised and can control the format and timing of all broadcast transmissions.

Law student Gideon Alper identifies the "top ten" legal stories at the Gay Couples Law Blog, with part 2 to follow tomorrow. His list includes the New York Senate's defeat of marriage-equality legislation. He observes that both the governor and state Assembly favored it. But Brian Raum, senior counsel of the Alliance Defense Fund, considers the defeat "not a change in the political tide but rather a reflection in the pool of enduring support for the protection and preservation of marriage." Raum also thinks it noteworthy that "of the 194 countries around the world, 187 retain the common understanding of marriage." At his Massachusetts G.L.B.T. Law Blog, Massachusetts attorney Christopher Vaughn-Martel reviews "the state of same-sex marriage throughout the world."

In a battle that only lawyers and marriage debate partisans (like me) could love, federal appellate court judge Alex Kozinski has been sparring with the Obama DOJ over whether the government must (or even can) provide federal benefits to the same-sex partner of a staff attorney for the 9th Circuit (Kozinski’s court). You can find good accounts of the issue here and especially here; I’ll refer you to those and not rehash their good work.

Whatever happens with this case, though, it’s become increasingly clear to me that some case involving same-sex marriages — either directly or indirectly — is going to reach the Supreme Court sooner rather than later ... [Unless Congress repeals the federal DOMA,] DOMA’s constitutionality may be the vehicle for examining the ban on same-sex marriages more comprehensively. And when that happens, it will likely be up to Justice Kennedy, as it so often is. The other eight are likely set, four to a side, making Kennedy an audience of one for the advocates. Is this really what anyone wants?

Thursday, December 24, 2009

Charlotte, North Carolina, is the seat of Mecklenburg County's government. On December 15th, the Mecklenburg County Board of Commissioners approved a package of limited domestic partnership benefits for same-sex partners of county employees. The benefits include sick leave and medical insurance. The Board considered findings by the County Department of Human Resources. Citing a February 2009 "Fact Sheet" of the Employee Benefits Research Institute, the Department found that employers have adopted domestic partner policies not only to promote hiring and retention of employees, but to advance fairness - a consideration that one of the Commissioners endorsed.

In approving the policy, Mecklenburg joins six other jurisdictions in the state that currently offer the benefits. The others are Chapel Hill, Carrboro, Durham, Greensboro and Durham and Orange counties. Four of the communities offer domestic partner benefits to both same-sex and unmarried heterosexual couples. But Mecklenburg would only offer them to same-sex couples, as do Greensboro and Durham.

Another Commissioner would have preferred extension of employment benefits to partners of employees, regardless of sexual orientation, presumably if the partners met the approved policy's qualifications. (Eligibility requires same-sex partners "to live together in a long-term relationship, be financially interdependent and not be married to anyone else.") I understand law professor Nancy Polikoff to favor extending employer benefits to a broader range of partners, including, for example, siblings who live together.

Charlotte's city council will consider whether the city's nondiscrimination policy requires it to follow the County's example by also adopting domestic partner benefits. In this November 2009 bulletin of the UNC School of Government, Diane M. Juff concludes that

North Carolina local government employers appear to have the authority to offer domestic partner benefits to their employees and their employees’ same-sex spouses or domestic partners of the same or different gender.

Some supporters of marriage equality discredit domestic partnerships as pretexts for institutionalizing second-class status for same-sex couples. But as local and state goverments adopt domestic partner benefits to remedy discrimination, will they do more than immediately benefit eligible same-sex couples - an important goal for the affected couples? Will they also ultimately increase public awareness of the unfairness of relegating same-sex couples to a status inherently inferior to marriage, whether for the purpose of limited benefits or benefits at near parity with marriage? Incrementalism, whatever it's legal (and other) failings, may have the long-term potential to shift public opinion further in favor of marriage equality.

Wednesday, December 23, 2009

Another bill [SJR 1 (2010)] will be introduced in the New Mexico legislature to constitutionally ban same-sex marriage. Past legislative attempts at statutory and constitutional bans have failed in the state. While marriage-equality legislation elsewhere seems unlikely to succeed, efforts to legislate bans in New Mexico face no better prospect.

In the latest installment of Chief Judge Kozinski vs. DOJ(OLC)/OPM, discussed in my post below, Chief Judge Kozinski issued yet another order today, in apparent response to OPM’s statement on Friday refusing, based on DOJ/OLC’s advice, not to abide by his earlier orders.

Kozinski is being subtle, and writing something only lawyers can love. In real-life language, Judge Kozinski is making it very clear that denying Ms. Golinski her benefits will be a refusal to obey a federal court order. Shots across the bow.

I authorize Ms. Golinski to take what further action she deems fit against any entity [without awaiting the result of a related appeal not involving OPM].

Kozinski is kindly inviting Ms. Golinski to bring a contempt action against the Obama Administration for refusing to obey a federal court order. This is going to get good.

(The attorney-author claims that if Golinski seeks and obtains a writ of mandamus against the OPM, that result would place her procedurally in the same position she already occupies. I disagree.)

The OPM has said that it will not comply with Kozinski's prior order. Karen Golinski, a 9th Circuit court staff attorney, has no other remedy than to file a lawsuit in federal district court, a prospect Kozinski clearly contemplates. California attorney Rick Xiao has observed that such a lawsuit would afford another opportunity to challenge the federal DOMA.

In September 2006, Elaine Huguenin, of Elaine Photography, refused Ms. Willock's request to photograph her civil same-sex commitment ceremony, even though Huguenin and her husband devote their New Mexico business to photographing "traditional" weddings and graduations. Although she hired another photographer, Willock filed a complaint with the state Human Rights Commission, alleging that Elaine Photography represents a public accomodation under the state anti-discrimination law, and that the business had discriminated against her on the basis of sexual orientation. The Commission ruled in favor of Willock. Elaine Photography appealed the ruling to New Mexico's Second Judicial District Court. The Court has just issued summary judgment against the business, finding, among other things, that the Commission's decision does not abridge her free exercise of religion, or her free speech, under the Frist Amendment.

Some legal scholars have claimed that the case involves a same-sex "union" and sole business proprietors whose religious liberty has been infringed. (In fact, New Mexico does not recognize civil unions.) They have also claimed that it reveals a fundamental conflict between religious liberty and marriage equality. For further discussion, see this post by law professor John Culhane, in which he references another post by law professor Dale Carpenter.)

Plaintiffs complained that the NM Human Rights Act was not "neutral" with respect to religion because it exempted religious institutions from having to comply with the sexual orientation non-discrimination provision, but provided no such exemption for religious individuals. Consequently, they challenged the constitutionality of the act, arguing that New Mexico had no compelling interest sufficient to justify such an abridgement of religious freedom. [Judge] Malott rejected this argument, finding that the act was perfectly neutral with respect to religion, and was not intended to discriminate on grounds of religion. But even if a compelling interest were needed to justify it, he found one: the state's desire to stamp out discrimination by businesses offering goods and services to the public.

MEXICO CITY (AP) -- Mexico City lawmakers on Monday made the city the first in Latin America to legalize same-sex marriage, a change that will give homosexual couples more rights, including allowing them to adopt children ... The bill calls for changing the definition of marriage in the city's civil code. Marriage is currently defined as the union of a man and a woman. The new definition will be "the free uniting of two people" ... Mayor Marcelo Ebrard of the Democratic Revolution Party was widely expected to sign the measure into law.

The D.C. Attorney General has filed a motion to dismiss the complaint in [Jackson v. District of Columbia Board of Elections and Ethics, No. 0008613-09 (D.C. Super. Ct., filed 11/18/2009); ADF press release and complaint], or alternatively, to obtain summary judgment. (For more background on the case, see my earlier post here.)

Monday, December 21, 2009

Thanks to California attorney Rick Xiao for forwarding today's filing of a letter by the Media Coalition, which represents all four major networks. The Coalition says that it would like to "provide camera coverage to broadcast and webcast the upcoming trial proceedings." If necessary, the Coalition is prepared to file a formal motion for television access, and would ask that Judge Walker issue a briefing schedule on the motion.

On January 7, 2010, Judge Walker is scheduled to rule on whether California Attorney General Jerry Brown should be realigned as a plaintiff in the case, and on whether his discovery orders should be stayed pending the ongoing appeal by Prop. 8 proponents.

There have been two developments in the Perry v. Schwarzenegger case in the last ten days worth discussing. The most recent is yesterday’s ruling by the Ninth Circuit Judicial Council that will allow the trial (due to begin on January 11th) to be televised ... The second big issue, also one that suggests an ethical gap between the lawyering and the politics of the case, involves a motion by the plaintiffs to have the organizational proponents of Proposition 8 divulge their internal campaign communications relating to strategy and messaging ... As I have blogged before, I get worried when the lawyers on “our” side pursue litigation strategies borrowed from the opponents of other civil rights movements, and which are deeply non-progressive in nature. Further, isn’t there something rather, um I don’t know, ironic about gay people seeking to use shame as a political tool to combat their enemies by dragging them out of the closet?

In this latest case from Texas, a same-sex couple legally married in Massachusetts wanted to dissolve their relationship after moving to Austin, TX. But only one party — it seems like the one with fewer assets — wants to divorce. The other resists, and is apparently seeking to void the marriage. As the Attorney General has opined (correctly), Texas law plainly makes that the right course of action. The difference could be huge, and provides yet another reason for legal recognition of same-sex unions ... In a “void” relationship, several Texas decisions strongly suggest that the less-well-off party might get…nothing.

Friday, December 18, 2009

LISBON, Portugal — Portugal's Socialist government has drawn up a proposal that would make Portugal the sixth European country to allow gay marriage. The law is almost certain to pass [in the Parliament], as the center-left Socialist government has the support of all left-of-center parties, who together have a majority in Parliament ... The proposal changes Portuguese law to remove references to marriage being between two people of different sexes, Cabinet Minister Pedro Silva Pereira told a news conference Thursday, adding the government will send its proposal to lawmakers for a debate, probably in January.

Mayor Adrian M. Fenty on Friday signed a bill to legalize same-sex marriage in the District, equating the hurdles confronting gay couples to those his parents faced when they married four decades ago as an interracial couple ... "Marriage inequality is a civil rights, political, social, moral and religious issue in this country and many nations," Fenty said. "And as a I sign this act into law, the District, from this day forward, will set the tone for other jurisdictions to follow in creating an open and inclusive city."

For extended discussion of this historic development, see this post by journalist Karen Ocamb.

[I]t appears that the issue of gay marriage has now arrived at Maryland's doorstep, and that increases the urgency for Attorney General Douglas F. Gansler to issue an opinion on whether the state is permitted to recognize same-sex marriages from other states.

The Office of Personnel Management has decided that it lacks legal authority to grant health care benefits to the spouse of 9th Circuit staff attorney Karen Golinski. (See also reaction by Golinski's counsel in a 12/21/09 Advocate article, and this 12/21/09 opinion article in the Washington Post.) California attorney Rick Xiao comments on the decision and its impact:

Today the Office of Personnel Management has officially announced its refusal to comply with Judge Kozinski’s order that the federal government must provide equal health insurance benefits for the same-sex spouse of a staff attorney of the Ninth Circuit. The federal government has asserted that Judge Kozinski acted “as an administrative official” and therefore his order is not legally binding to override the Defense of Marriage Act (“DOMA”).

This is a very significant development. Now the plaintiff will have to seek a writ of mandamus to compel the federal government to comply with Judge Kozinski’s order. To do so, the plaintiff must first file a formal lawsuit in the federal court. The basis of such a lawsuit would be interesting. Although Kozinski’s administrative ruling is based largely on the doctrine of separation of powers, the disputed constitutionality of DOMA, which the federal government has cited as the reason for its defiance of Kozinski’s order, will surely be a centerpiece of the lawsuit.

So far, at least one judge of the Ninth Circuit——Judge Reinhardt, who also presided over a similar administrative proceeding involving a federal public defender’s claim for equal health insurance benefits for his same-sex spouse——has explicitly ruled that DOMA is unconstitutional as a violation of equal protection. Moreover, Judge Kozinski’s order has pointedly noted the invidious discrimination that the plaintiff has suffered as a result of DOMA. Therefore, if the plaintiff’s lawsuit challenges DOMA, it will have an excellent chance of prevailing in the Ninth Circuit. As a result, we may see the DOMA battle ground rapidly expanding from Massachusetts to California.

In early January 2010, the most exhaustive legal review of gay rights in the country’s history will come in a public trial led by Ted Olson and David Boies in Judge Walker’s San Francisco courtroom. And it’s very likely that DOMA will soon be challenged in California too. For the nationwide gay rights movement, federal courts in California will take center stage in the years to come.

On October 2nd, Texas District Court Judge Tena Callahan ruled that a same-sex couple has a constitutional right to divorce under the equal-protection clause of the 14th Amendment, even though the state constitution bans same-sex marriage and legal status for relationships "similar" to marriage. The case is In the Matter of the Marriage of J.B. and H.B. (Tx. Dallas County 302nd Dist. Ct.). Attorney General Greg Abbott said that he would appeal the ruling "to defend the traditional definition of marriage that was approved by Texas voters."

News 8 Austin (12/17/09) and UPI (12/18/09) report on another same-sex divorce case in Austin. While J.B. and H.B. both wish to divorce, Angelique Naylor seeks a contested divorce from her spouse. According to News 8, "Naylor's spouse is challenging her request for a divorce. She's citing Texas law, which does not recognize same-sex marriage." Not surprisingly, Abbott told News 8 that his office will "closely monitor" the case. He claims that Naylor's spouse is appropriately seeking a "voidance" of the relationship. A judge (not yet assigned) is expected to review the divorce petition in February.

Neither of the news reports identifies Naylor's spouse. That may be because the reporters have honored her preference to remain unidentified. Of course, theirs may just as well be an oversight. At any rate, I would rather not use this site to disclose her name, or the case number, although both are obviously a matter of public record. I would welcome comment on my decision to withhold both types of information. Does it matter that the plaintiff contests the divorce? Does the public have an overriding right to learn her name from a blog, even - or especially - if she may seek to avoid harmful consequences from identification by a blogger? Any interested party can call the Court, as I did. What ethical obligation does a blogger have here?

Thursday, December 17, 2009

(12-17) 16:40 PST SAN FRANCISCO -- Television cameras will be allowed for the first time in federal trials, under an experimental program approved by a San Francisco-based appeals court Thursday that could lead to TV coverage of a lawsuit challenging California's same-sex marriage ban. Chief U.S. District Judge Vaughn Walker, presiding over the case on the constitutionality of Proposition 8, has said he may approve TV coverage of the trial, scheduled to start Jan. 11 in San Francisco.

Walker first raised the possibility of a televised broadcast several weeks ago, and lawyers representing pro-same-sex-marriage plaintiffs support the idea. The defendants oppose it, saying anti-gay-marriage witnesses could be subject to harassment and retribution. When the topic arose again this week, Walker alluded to possible Ninth Circuit action and asked for another discussion with the parties should authorization occur.

A few months ago, I wrote about a Texas appeals court ruling that a nonbio mom could not file for custody or visitation of a child she had co-parented. In a move that surprised everyone, the court reversed itself earlier this month. The nonbio mom had filed a routine petition for rehearing, something almost never granted. The court sat on the petition and then, rather than grant that petition, it released a ruling on its own vacating the earlier judgment and issuing a new opinion...in the nonbio mom's favor!

A judge of this court has called for a vote to determine whether this case will be reheard en banc under Federal Rule of Appellate Procedure 35(a). The parties are requested to file simultaneous briefs setting forth their respective positions on whether this case should be reheard en banc, including whether rehearing en banc is warranted in light of Mohawk Industries, Inc. v. Carpenter, 558 U.S. —, No. 08-678 (Dec. 8, 2009) ... The briefs shall be filed on or before December 24, 2009.

Judges of the U.S. 9th Circuit Court of Appeals will vote soon on whether to reconsider their decision last week denying gay rights advocates access to internal communications of Proposition 8 supporters who succeeded in getting voters to ban same-sex marriage last year. In a terse announcement filed this evening, the three judges who denied the access, citing 1st Amendment grounds, said one of the 27 active judges on the court had called for a vote to rehear the issue with a full 11-member panel of judges.

Wednesday, December 16, 2009

On Wednesday morning, Dec. 16, the Senate Homeland Security and Governmental Affairs Committee favorably reported the Domestic Partner Benefits and Obligations Act out of committee on an 8-1 vote. The mark-up, which took less than a half hour, stood in stark contrast to the several hours of debate that the bill faced before being reported out of the relevant House committee in November.

The measure would provide the same employment benefits to federal employees in same-sex domestic partnerships that are now provided to married federal employees and their spouses – such as healthcare, retirement and disability plans, family leave, worker’s compensation, and group life insurance. The same obligations would also apply – such as conflict of interest provisions, anti-nepotism rules, and disclosure requirements.

InLadele v. London Borough of Islington, (EWCA, Dec. 15, 2009), the Court of Appeals of England and Wales agreed with Britain's Employment Appeals Tribunal (see prior posting) that a Christian marriage registrar was not subjected to illegal discrimination when she was disciplined and threatened with dismissal for refusing to register same-sex civil partnerships.

I am in basic agreement with this decision. In my view, public employees have a duty to serve the public, not merely a portion of the public. However, if offices can be organized so that religious objectors can be transferred or otherwise assigned to jobs that do not involve issuing licenses to the public, that seems a pragmatic and reasonable result.

U.S. District Court Judge Vaughn Walker told the attorneys and observers at a pre-trial hearing in Perry v. Schwarzenegger that the U.S. Court of Appeals for the Ninth Circuit will be issuing an order this afternoon to consider en banc whether the internal documents of the proponents of Proposition 8 are protected from discovery by the Plaintiffs, according to a person present at the hearing.

The pre-trial evidentiary hearing starts at 10:00am in the San Francisco courtroom of District Court Judge Judge Vaughn R. Walker. Olson and Boies will argue that the case should go to trial. Walker has already set a trial date of Jan. 11 and some reporters and bloggers, such as Patrick Range McDonald at the LA Weekly, want the trial to be televised. Walker will consider that issue today, as well as others such as scheduling motions on evidence and witnesses.

Imperial County officials want to join the sponsors of California's gay marriage ban in defending Proposition 8 during an upcoming trial. The Imperial County Board of Supervisors voted in favor of an emergency motion Tuesday to intervene in the case. Supervisors say the county's participation is needed because Attorney General Jerry Brown supports overturning the voter-approved measure, while Governor Arnold Schwarzenegger has taken a neutral position on it.

In this opinion article, Fernando Lopez, Field Coordinator of Marriage Equality USA – San Diego,faults the Imperial County Board of Supervisors for approving of the motion to intervene:

Here comes the shady part: The motion was passed Tuesday without being clear on the agenda. The public had no time to weigh in on the matter. The case does not affect the running of county business. To top it all off, in less than 24 hours the County had already filed with the court. Sound fishy yet? In their filing, they claim to have brought up the matter in November, but again, a quick investigation into their past agendas shows no clear item to address what is an intensely controversial issue. Let’s just say Imperial Valley residents were quite surprised when they opened their papers this morning, whatever their thoughts on Prop 8 are. Because the timing of the vote is around the holidays, it also seems that the next day for public comments to be heard, will be only 2 days before the court’s deadline and 6 days before the trial begins.

Tuesday, December 15, 2009

The D.C. Council voted today 11 to 2 to give final approval to the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 [engrossed version]. The vote recognizing same-sex marriage was the second in two weeks for the Council, which approved the bill in an initial vote on December 1, 2009 by the same margin. Since last July, D.C. law has recognized marriages by same-sex couples from other jurisdictions, including foreign countries. The new legislation would permit same-sex couples to marry in D.C. itself while ensuring that clergy and religious organizations would not be required to provide services, accommodations, facilities or goods for the solemnization of a same-sex marriage. The legislation now goes to the desk of Mayor Fenty, who has said he will sign it. The law would take effect at the conclusion of the Congressional review period, which lasts for 30 legislative days following the Mayor’s signature.

Expect marriage equality to be realized in D.C. by late January. We needed this boost to end the year, after stinging losses in Maine, New York, California (the Supreme Court’s ruling upholding Prop 8), and — let’s face it — New Jersey. Taking the year in full: Equality has expanded from one lonely state to six. Not bad. In fact, I’m elated.

Opponents have a few options at this point, but none of them seem likely to work in the near term ... If I’m right about the near-term prospects, marriage should be secure in the city ... D.C. will also be another test of the theory that, at least without expansive exemptions for religious objectors, there will significant erosion of religious liberty.

A last-minute change affects a religious-liberty exemption. The change removes the implication that same-sex marriage has been expressly targeted for permitted religious discrimination. The amended language in this respect conforms to its counterpart in such marriage equality laws as New Hampshire's:

“Sec. 1283. EQUAL ACCESS TO MARRIAGE. –

. . .

“(e) Notwithstanding any other provision of law, a religious society, or a nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society, shall not be required to provide services, accommodations, facilities, or goods for a purpose related to the solemnization or celebration of a same-sex marriage, or the promotion of same-sex marriage through religious programs, counseling, courses, or retreats, that is in violation of the religious society’s beliefs. A refusal to provide services, accommodations, facilities, or goods in accordance with this subsection shall not create any civil claim or cause of action, or result in a District action to penalize or withhold benefits from the religious society or nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society.”

“The City Council’s action today is not the final word,” said Bishop Harry Jackson, pastor of Hope Christian Church in Beltsville, Md., and chairman of a group called Stand4MarriageDC.

Mr. Jackson said he would lobby Congress to intervene, but he acknowledged that such a move threatened to upset some of his local supporters, who may be put off by the prospect of subverting local autonomy in Washington.

The city’s Board of Elections and Ethics decided not to hold a referendum on the legalized same-sex marriage, and Mr. Jackson’s group is challenging that decision in court on Jan. 6. [See my post on the lawsuit. This article reports Council Member David Catania's latest comment on the lawsuit.]

A truckload (.pdf) of filings (.pdf) went online in the federal challenge to Proposition 8 over the last two days, and some begin to sketch out the evidence which will be in play at the January trial. Our favorite tidbit so far: Prop 8 opponents calling one of the other side’s experts a crackpot (.pdf) ... The person in play is Dr. Katherine Young, a professor who agitates against gay marriage from a perch at McGill University in Montreal ... Ted Olson lists the many, many things she's not an expert in.

In this opinion article, Chris Oliveira addresses practices that undermine protections of New Jersey's civil union law. The state legislature adopted a parallel, all-but-marriage regime as a result of the state Supreme Court's ruling in Lewis v. Harris, 188 N.J. 415 (2006). The Court ruled that it violates the state constitution's guarantee of equal protection to deny same-sex couples the rights and responsibilities (but not the name) of marriage. Oliveira claims that the dissenting opinion in Lewis anticipated the discriminatory consequences of denying same-sex couples the right to marry.

Oliveira describes three examples of discrimination against same-sex couples that are shocking and painful to read. He observes that

[d]uring testimony [last week before the state Senate Judiciary Committee], it was reiterated time and time again that employers, health insurers, and hospitals did not acknowledge the term “civil union” to be synonymous with “marriage,” but those companies conceded that they would have acknowledged a same-sex couple who was married for purposes of health benefits, hospital visitation rights, and other benefits.

He concludes:

Plain and simple, the civil union law is legislated inequality. The state-recognized distinction between civil union and marriage is significant: civil unions promote a second-class status for same-sex couples. This distinction promotes unequal treatment of individuals, and it encourages businesses and private citizens to do the same ... [I]t is impractical and heartless to suggest that civil union partners should embrace a convoluted legal system and try to sort out inequalities and discrimination in a time of crisis, when such problems could be avoided entirely by changing the words “civil union” to “marriage.”

Marriage Equality legislation has currently passed in the Senate Judiciary Committee. The full Senate vote was postponed from its original date on December 10, so that the Assembly could vote first, where it is more likely to pass. The Assembly Judiciary Committee is scheduled to vote on its version of the bill by January 4, 2010, and if it passes, the legislation will go before the full Assembly and then the full Senate. Finally, if the legislation passes both houses,Governor Jon S. Corzine will sign the bill into law.

Proposition 8 amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Two same-sex couples filed this action in the district court alleging that Proposition 8 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The official proponents of Proposition 8 (“Proponents”) intervened to defend the suit. Plaintiffs served a request for production of documents on Proponents, seeking, among other things, production of Proponents’ internal campaign communications relating to campaign strategy and advertising. Proponents objected to disclosure of the documents as barred by the First Amendment. In two orders, the district court rejected Proponents’ claim of First Amendment privilege. Proponents appealed both orders. We granted Proponents’ motion for stay pending appeal.

We have the authority to hear these appeals either under the collateral order doctrine or through the exercise of our mandamus jurisdiction. We reverse. The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment. Where, as here, discovery would have the practical effect of discouraging the exercise of First Amendment associational rights, the party seeking discovery must demonstrate a need for the information sufficiently compelling to outweigh the impact on those rights. Plaintiffs have not on the existing record carried that burden in this case. Wetherefore reverse and remand.

I think the opinion’s arguments are quite persuasive, especially given the Court’s longstanding recognition of a presumptive First Amendment right to confidential association, at least where compelled disclosure of who belongs to a group is involved.

I’m beginning to think that this entire appeal was improvidently granted (or just too rushed to reach a well considered result). It wasn’t clear to the court what the discovery orders encompassed. It wasn’t clear what standard the court applied. It wasn’t clear what standard the proponents proposed. And, you can add Prof. Volokh’s observations to my “why didn’t you address this” critique.

A bill legalizing same-sex marriage in Washington, D.C., is expected to pass a City Council vote on Tuesday ... The mayor has already committed to signing the bill, but opponents are vowing not to give up the fight against it. And because laws in the District of Columbia are subject to congressional review, even if the bill passes on Tuesday, it won't be too late for opponents to lobby for it to be overturned ... It would take a joint resolution of Congress, signed by the president, to overturn the measure once it becomes law. And advocates don't believe that will happen.

Saturday, December 12, 2009

New Hampshire Rep. Splaine was a primary sponsor of New Hampshire's marriage equality law. Here he describes introduction of legislation to repeal the law:

The legislation that would repeal House Bill 436 has just been given a number, and has been printed. It is House Bill 1590, "An Act Repealing Same Sex Marriage." It will be sent to the House Judiciary Committee, where after a public hearing HB 436 had been reported out with "no recommendation" after a 10-10 tie. Since then, however, we have picked up at least two members of that committee who now support marriage equality.

Friday, December 11, 2009

Ireland's Supreme Court has ruled that a same-sex family is not a "de facto" family under Irish law:

The Court clarified that the ‘de facto family’ does not exist as a rights-bearing institution at Irish law. It is not merely the case that the de facto family does not enjoy equivalent protection to the marital family under Article 41 and 42, but that it enjoys no protection as such at all. In consequence, B.M., as non-biological mother had no rights as such in respect of the child.

This case demonstrates so many of the difficulties faced by families that do not comport with the heterosexual-and-married model. The court refuses to recognize the existence of such families. It makes marriage the absolute prerequisite to legal protection for a family. It therefore is untroubled by the [sperm] donor’s interference with the women’s family, for it is not a recognized family in the first place. The donor is able to prevent the women from acting autonomously and moving where they wish to move.

Cal. Const. Art.I, Sec. 7.5, is the state's constitutional ban on same-sex marriage, as adopted by Prop. 8. The Burns plaintiffs claim that in Strauss v. Horton, 49 Cal. 4th 364 (2009), the California Supreme Court did not rule on the substantive validity of Section 7.5 under the state constitution's protections of due process, equal protection, and privacy. Instead, plaintiffs allege, the Court limited itself to the narrower question of Prop. 8's "enjoinment" - a question of whether Prop. 8 represented a valid amendment to the state constitution or an invalid revision. Alleging harm from denial of marriage licenses, plaintiffs challenge Section 7.5's implementation as violations of state constitutional due process, equal protection, and privacy.

Will SF Superior Court Commissioner Arlene T. Borick find that this proposed distinction lacks merit? She has scheduled a January 25th hearing on her order to show cause why this latest version of the complaint should not be dismissed. The California Attorney General has not yet answered the complaint as amended.

Thursday, December 10, 2009

[JURIST] Supporters of a New Jersey same-sex marriage [JURIST news archive] bill [text, PDF] decided Wednesday night to delay a State Senate vote scheduled for Thursday. The bill's sponsors, Democratic senators Raymond Lesniak and Loretta Weinberg, withdrew the bill [NYT report] from the senate agenda, saying they wanted to allow a hearing in the general assembly before the vote took place.

Here at United Families International we do our best to keep you up-to-date on policy issues around the world that affect the family. Here is a quick round-up of current developments in same-sex marriage and civil unions around the world.

In Balde v. Alameda Unified School District , No. RG09-468037 (Cal. Alameda County Super. Ct.), plaintiff parents unsuccessfully sought to compel a San Francisco Bay Area school district to exempt their children from a curriculum designed to prevent anti-gay bullying and harassment. Last night, the Alameda Unified School District (AUSD) Board voted to replace the controversial curriculum - "Lesson 9" - with "broad lessons against bias" that will address "six specific forms of bias, including against gays." A teachers' committee will recommend books for the new program, and the Board will vote on the recommendations. These recommendations are likely to incite continued controversy in this island community near Oakland. I have been monitoring developments because the Yes on 8 and Yes on 1 proponents in California and Maine, respectively, claimed that public school students would be "forced" to learn about same-sex marriage unless the states restored bans on it. In fact, Lesson 9 included a second-grade picture book, Who's In A Family, that was a centerpiece of Yes on 1's campaign because of its references to gay and lesbian families.

Wednesday, December 9, 2009

Yesterday, the Supreme Court handed down a unanimous decision in Mohawk Industries v. Carpenter. The Court held that attorney-client privilege disputes are not appropriate for collateral-order appeals. (The Ninth Circuit and two others allowed these appeals under the collateral-order doctrine; the Eleventh Circuit, which rejected Mohawk’s invocation of collateral-order review, joined most of the other circuit courts on this question.) The Mohawk decision will almost certainly force the panel considering the First Amendment privilege dispute in Perry v. Schwarzenegger to resort to a writ of mandamus (or, less likely, punt for want of jurisdiction).

UPDATED – SEE THE COMPLETE BRIEF [of Perry plaintiffs] AND WITNESS LIST AT THE END OF THE POST.

Late Monday, Ted Olson, David Boies and the team of lawyers representing two California couples in a federal lawsuit seeking to overturn Prop 8, filed a brief explaining their position and a list of witnesses they may call during the trial, set for a nonjury trial Jan. 18.

In the brief, they told U.S. District Judge Vaughn Walker that they intend to prove that Prop 8 is ”irrational, indefensible and unconstitutional.”

Proposition 8 supporters in an opposing trial brief claimed there are numerous reasons for a traditional definition of marriage. One of the reasons, their lawyers wrote, is "promoting and regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation."

I have updated my list of Perry filings later today to include a link to the brief of Prop. 8 proponents. Thanks to California attorney Rick Xiao and Phillip Minton of Unite the Fight for their help.

Last week, a 9th Circuit panel heard oral argument in Perry v. Hollingsworth, No. 09-17241. Charles Cooper, counsel for Prop. 8 proponents, argued that a First Amendment privilege protects internal campaign communications that Judge Walker had ordered them to disclose to Perry plaintiffs. (See Parenthetical Greg's perceptive summary of the oral argument here.) Among other issues, the 9th Circuit panel considered two separate questions about whether it has jurisdiction to hear the appeal brought by Prop. proponents. Can the panel review an immediate, pre-trial appeal of discovery orders based on proponents' claims of First Amendment privilege, or must proponents wait until entry of a final judgment to make their appeal? Does the First Amendment claim present exceptional circumstances warranting a writ of mandamus by the panel, when ordinarily proponents could not pursue appellate review of the discovery orders until entry of a final judgment?

The U.S. Supreme Court has just issued a ruling that may affect the first of these jurisdictional questions. Here is what Parenthetical Greg has to say about the Mohawk ruling, written by Justice Sotomayor:

The panel will now (presumably) have to deal with today's Supreme Court decision in Mohawk Industries v. Carpenter. The court considered and rejected the contention that the attorney client privilege was appropriate for a collateral-order appeal.

The panel hearing the Perry appeal mentioned that this case was dangling over their heads (metaphorically, of course).

Even if they accept that Mohawk should govern (ruling out the appeal), the Ninth Circuit could issue a writ of mandamus in the alternative.

Either way, the panel may end up revisiting their opinion at this point.

As a result of yesterday's hearing, the New Jersey Senate Judiciary Committee amended marriage-equality legislation to provide the following religious liberty exemptions:

Sec.5

...

b. No religious society, institution or organization in this State serving a particular faith or denomination shall be compelled to provide space, services, advantages, goods, or privileges related to the solemnization, celebration or promotion of marriage if such solemnization, celebration or promotion of marriage is in violation of the beliefs of such religious society, institution or organization.

c. No civil claim or cause of action against any religious society, institution or organization, or any employee thereof, shall arise out of any refusal to provide space, services, advantages, goods, or privileges pursuant to this section. No State action to penalize or withhold benefits from any such religious society, institution or organization, or any employee thereof, shall result from any refusal to provide space, services, advantages, goods, or privileges pursuant to this section.

d. Nothing in this act shall be construed to limit the effect of section 2 of P.L.1979, c.428 (C.18A:35-4.7). [This law allows parents to exempt their children from public school lessons involving "health, family life education, or sex education" if in conflict with the parents' religious beliefs.]

With one critical exception, these exemptions resemble those the D.C. Council provided in its recently adopted legislation [Religious Freedom and Civil Marriage Equality Amendment Act of 2009 (Bill 18-482, as revised November 10th; enrolled version not online].

Like the D.C. Council's Committee on Public Safety and the Judiciary, the NJ Senate Judiciary Committee decided to extend the exemptions to religious organizations even if they followed the contested example of a NJ religious organization and rented their wedding facilities to heterosexual couples, but not same-sex couples. But with respect to services of religious organizations that "promote marriage," the D.C. Council Judiciary Committee limited their exemptions to just "religious programs, counseling, courses, or retreats." The NJ Senate Judiciary Committee does not limit the scope of its exemptions in this way. As a result, a NJ religious organization would be free to deny same-sex couples any service "related to the promotion of marriage" - unless the state's public accommodation law (N.J.S.A. 10:1-5, described here) protects the right of gays and lesbians to receive that service.

Monday, December 7, 2009

The Senate Judiciary Committee approved the legislation by a vote of 7-6 after nearly eight hours of debate and testimony that was at times emotional and eloquent. The approved bill included an amendment intended to clarify that religious organizations would never be forced to sanction or participate in a marriage they disagreed with.12/07/09

This just in: By a 7-6 vote, the New Jersey Senate Judiciary Committee voted out the marriage equality bill, with what appear to be appropriate protections for religious organizations whose beliefs teach against same-sex unions. (I’m trying to get a copy of the bill so that I can independently analyze its terms.) Its fate in the full Senate (and beyond) may be decided on Thursday, and is unclear.

Here’s the scene from New Jersey today, where supporters and opponents of the marriage equality bill [version as introduced 06/09/08] gathered in advance of the Senate Judiciary committee meeting. Write your own caption ... I’ll be back with a summary and a preview of Thursday’s vote later.

There has been much written about Office of Personnel Management Director John Berry’s comments this weekend about Ninth Circuit Judge Alex Kozinski’s order relating to a same-sex couple’s health benefits. What’s not being written about is the other Ninth Circuit judge considering a similar dispute, Judge Stephen Reinhardt.

Looking at both of their actions should help disentangle this debate, much of which has been over-inflated and devoid of careful analysis of what is actually going on with the dispute.

December 3 saw the second stage debate on the Civil Partnership Bill 2009, which will establish new schemes for the legal recognition of co-habiting couples and same-sex civil partnerships. The Bill, in [Justice] Minister Dermot Ahern’s words[,] "creates for the first time in Irish law a scheme under which a same sex couple can formally declare their allegiance to each other, register their partnership under new provisions in the Civil Registration Act 2004, commit themselves to a range of duties and responsibilities and at the same time be subject under new law to a series of protections in the course of their partnership in the event of a failure of either party to maintain the other and in the event of disputes between them as to ownership of property."

Petitioners in this lawsuit include parents of Alameda, California, who sought to exempt their children from a curriculum of the local school district. On May 26th, the Alameda School Unified School District (AUSD) Board adopted the Safe School Community Curriculum - Lesson 9. They took this action in response to episodes of bullying against students who are members of gay and lesbian families. Lesson 9 introduces kindergarten through fifth-grade students to differences among familes, so that by the fifth grade students not only understand family diversity and LGBT family structures, but are ready to learn about prejudicial stereotypes. Lesson 9 was thus designed to prevent bullying and harassment against LGBT students, and students of non-traditional families, including families with gay and lesbian parents.

Objecting on religious grounds to Lesson 9, plaintiff parents asked AUSD officials to exempt their children from the program. The parents claimed that Lesson 9 represents "health instruction," and that Cal. Educ. Code Sec. 51240 allows them to exercise an "opt-out" of their children from any "health instruction" lesson that violates their religious beliefs. When AUSD officials informed them that the Lesson 9 curriculum has no opt-out provision, counsel for the parents - the Pacific Justice Institute - filed a petition with the Alameda County Superior Court to compel AUSD to honor their exemption demand. Pacific Justice Institute filed the petition on August 12th.

Yes on 8 and Yes on 1 proponents in California and Maine, respectively, told voters that marriage-equality would advance public-school "indoctrination" in same-sex marriage. In this context, I thought that marriage-equality opponents might exploit Balde in the next campaign to repeal Prop. 8. If banning marriage equality in California does not stop some school districts from adopting programs like Lesson 9, they could "warn" voters, imagine what incentive school districts would have if voters repealed the ban!

It took Judge Frank Roesch relatively little time to rule against the parents and order them to pay AUSD's legal costs. He found no intent by the State legislature to define a "school's instruction in health" by standards petitioners identified as relevant - the Health Education Content Standards for California Public Schools, as adopted by the California Department of Education. And even if these standards were relevant, Judge Roesch found nothing more than incidental overlap at each grade level between Lesson 9 and the Health Education Content Standards:

[C]ontrary to the Petitioners' assertion, the Lesson 9 curriculum does not closely track the Health Ed Content Standards on a grade-by-grade basis. The Lesson 9 curriculum has a distinct and focused purpose tied to preventing discrimination against young students based on the LBGT structures of their families, and any overlap with Health Ed Content Standards is not significant and does not support Petitioners' claimed right to opt out of instruction for their children in the Lesson 9 curriculum.

Finally, the Court agrees with the District that Petitioners' position would expand the scope of the opt out right under Education Code section 51240 to include any anti-discrimination or anti-harassment instruction that deals with families or tolerance of persons with differences. The result would be that parents who object to instruction in tolerance of individuals or families of other races or of mixed races, of persons with disabilities, or of persons or families of other races, ethnicity, or religion, would have the right to have their children excused from instruction on those topics. This result could not have been contemplated by the Legislature, since it substantially hinders the ability of schools to supplement California's policy under Education Code section 233 to provide equal rights and opportunities in public schools to all persons, regardless of sexual orientation, disability, gender, nationality, race or ethnicity, or religion. [9-10]